Florida Statutes Regarding Feeding the Homeless

Overview of the Homeless Situation in Florida

An estimated 3,000 to 4,000 people are homeless in Miami-Dade County, and an estimated 12,000 are homeless in the rest of Florida. There are many reasons for our state’s high homeless numbers. Most counties do not have enough affordable housing available. Broward, Collier, Duval, Hillsborough, Palm Beach, Pinellas and Polk counties have the worst shortages. According to a report by the National Low-Income Housing Coalition , 71 percent of extremely low-income renters in Duval County have "worst-case" housing needs and 51 percent pay more than 50 percent of their income on rent. The housing market has gotten tighter. The number of rental units has also declined. The economic downturn has worsened the situation and many people have lost their jobs. The death of Florida’s affordable housing trust fund, Sadowski Fund, has also been called out as an explanation for the crisis. Forbes Magazine said "Florida was once known for "no-footprints" if a person had no place to stay, it was considered "no foot prints".

Feeding the Homeless in Florida Legislation

Florida does have some state laws dealing with the feeding of the homeless. One such example is Florida Statute § 466.003. The statute requires that any food service establishment, as defined in Chapter 500, provide at least 5 pounds of food per month, or an equivalent value, to an organization registered as a charitable food donor under s. 501(c)(3), "Religious charitable or fraternal".
Additional provisions that apply to both the organization and the food service establishment are included in the statute. First, the organization must be recognized by the department, which means an inspection. Second, the organization and food service establishment must comply with all local health and safety rules, (the organization) Food safety and handling rules of the department, and the state’s Limited Liability for Donated Food Act. Third, the exchange must be voluntary. Fourth, the retailer and food service establishment is not liable for "damages or injury arising out of, or in the course of, the donation or the use, consumption, or other disposal of the donated food . . ."
In addition to the Florida Statute § 466.003, there is also the Florida Charitable Food Donation Law, F.S. 500.0736. This law encourages reciprocation between food service establishments and charitable organizations by providing immunity from civil liability arising from the transfer of food, so long as the food was in good faith. The statute further provides details on potential liability, when it applies to either party, and additional parties that may be covered.
Potential trouble arises for charitable organizations when food service establishments are only willing to provide approval of any food donations to an anonymous third party, and refuse to put their name and contact information on the forms that the organizations need to file in order for their donations to be approved by, and permitted to operate in the various jurisdictions and surrounding homeless camps.
Some more recent laws dealing with the feeding of the homeless in Florida have been controversial. One such law: HB 537
The Bill pending in Florida Congress that is being sponsored by Rep. Trumbull is yet another attempt to limit charitable organizations’ ability to readily feed the homeless. While the Bill purports to require a "permission slip" to be signed by the owner of the venue where the feeding is to take place, prior to any food being offered, and grants discretion to the local governing body, regardless of the local laws, it is largely impractical as written.
For example, if an organization were to submit an application for permission to feed the homeless, though they may have to wait over 30 days just to have their application reviewed, the email they would get may state that reply could take an additional 30 days before the governing body would get back to potentially give their consent. During that time, many volunteers would likely have lost interest, and many people will have gone hungry.
Additionally, the Bill requires that individuals engaged in providing food must get a food handler permit, which, those who have fed the homeless in the past, may not have had to get, and potentially run afoul of local ordinances if such permits are not already in their possession.

Public Reaction to Feeding the Homeless in Florida

The response to these anti-feeding laws has been mixed. While certain municipalities such as Miami have indicated that they are taking a zero tolerance approach to infractions of the law, other areas have become focal points for more public interaction. Orlando and its surrounding Orange County have seen increased public engagement from both sides of the issue. During November and December 2012, the Orange County Commission saw a veritable parade of local civic group representatives partner with the homeless community to voice their disapproval of the anti-feeding ordinances. Activists spoke at length to Commission panelists, questioned the need for such laws, described the dire situation for the homeless, and implored legislators to repeal the ordinances. Representatives for the Faith Coalition for the Homeless (a collaboration of Orange County churches and nonprofits), Voice for the Homeless, Floridians for the American Way, and several other pro-homeless groups organized rallies and campaigns which included volunteers feeding the homeless at specific public locations on specific days. The organizations provided not only meals, but also clothing and hygiene items. Homeless advocates also held vigils in front of City Hall in Orlando for four consecutive weeks, attracting significant media attention and drawing attention to the plight of the homeless and the negative impact of anti-feeding laws. Reinforcing the disparate public reaction to these laws, some church and nonprofit groups have attempted to work within the legal framework of the ordinances in order to continue to serve the homeless in need of food and nutrition.

Cases involving Litigation and the Homeless

Enforcement of these regulations has resulted in legal action in several cases. This past October, a Federal District Court judge denied the City of Orlando’s injunction to stop two nonprofit groups, "Food Not Bombs" and "Homeless Services Network," from feeding the homeless in downtown Orlando, finding that the rules were unconstitutional and that the voluntary nonprofits, which were given written notice prior to the litigation, presented "minimal challenges to the ordinance."
In State of Florida v. City of Fort Lauderdale, the state sought a temporary injunction to force the city to amend an ordinance prohibiting food sharing an MRT (Major Recreational Transportation Area) owned by the City of Fort Lauderdale. The ordinance prohibits the sharing of food in a MRT unless a permit is received from the city manager. After a hearing, the trial court declined to issue a temporary injunction, finding that the state did not show irreparable harm because there were no competing food providers being displaced. A post-hearing motion for reconsideration was granted, but the permanent injunction was denied, and thus, the trial court ruled that while other non-profit groups would have standing to challenge the ordinance, the state lacked standing. The state of Florida appealed.
Additional case law indicates that criminalizing giving food to a person in need is indeed an infringement on First Amendment rights. In Reinette Turner, 198 So. 3d 881 (Fla. 1st DCA 2016), the defendant took food to a homeless person. She was charged with violating the ordinance, sentenced to 20 days in jail and fined $500. On appeal, the court reversed, finding that requiring a permit in order to feed the homeless is an unconstitutional prior restraint on speech. Reinette Turner v. City of Fort Lauderdale, 2015 WL 5488477 (Fla. 2015). Further claims of unlawful search and seizure were affirmed, finding that the officer’s warrantless entry into her home violated the 4th amendment to the U.S. Constitution.
In Martin v. City of Boise et al, 903 F.3d 1051 (9th Cir., 2018), the Ninth Circuit found that an ordinance that makes it a crime to sleep on the public streets when the city doesn’t provide enough shelter or sleeping space violates the Eighth Amendment (prohibiting cruel and unusual punishment).
In Nunez v. City of Los Angeles, 114 F.3d 935 (9th Cir. 1997), the Ninth Circuit found that there is no fundamental right to a first meal after an arrest. Therefore, denying a food request where the arrestee was taken to his arraignment within three hours did not violate the Due Process Clause.
In the case of Soto-Servanto v. New York City Dep’t of Homeless Services, No. 1:18-cv-486 (S.D.N.Y. Jan 19, 2018), the policy of the City of New York of restricting the time homeless individuals could sleep in parks and public spaces was found to pass the rational basis test.

Feeding the Homeless Litigation and Other Case Law

As lawsuits have progressed, the legislation proposed by both sides has evolved. As of now, the proposed legislation has not reached any conclusions. However, both sides present good arguments for consideration. The homeless community and advocates have suggested various alternative solutions. Several nonprofit organizations have actively advocated the repeal of the ordinance and offered to collaborate with the Miami-Dade County Commissioners to develop policies that will address the hunger issues facing the homeless. The group argues that policymaking should be conducted together with, not secretly and behind closed doors from, community stakeholders. Similarly, many advocacy groups, such as the ACLU and the American Friends Service Committee, argue that governments should collaborate with nonprofits working with the homeless to find impact solutions that do not infringe on the constitutional rights of the homeless. The ACLU suggests that if municipalities made it a priority to provide permanent housing, rather than placement in short-term shelters, the problem of "too many food providers" in an area would fade. Additionally, the ACLU found that the large concentration of food providers in one location is due to the hostility shown toward the homeless in the business districts of more affluent neighborhoods . The ACLU argues that if municipalities work with NGOs, communities will be encouraged to use other methods to render aid to the homeless population, instead of relying on few fixed locations in the downtown area. Other proposals include, at a minimum, amending the ordinances so that harassment is prohibited. Advocates have expressed that, under the current ordinance, the police are allowed to harass and embarrass those who are acting constitutionally. The problem with this is that those who feed the homeless will not be able to bear the potential consequences associated with the constant harassment. Another proposal is to ban the City of Miami Police from intervening or arresting those who are acting constitutionally. Alongside this proposal, the City of Miami should invest in adequate infrastructure and rest facilities so that homeless individuals may have a place to go at night. This would hopefully alleviate the concentration of individuals in fixed locations as well. Given the significant amount of money that Miami-Dade County gets through grants and aid to help fight homelessness, there has yet to be any accountability for those funds. Government now should prioritize finding an appropriate solution that both protects people’s rights and allows for the homeless to be fed.

Feeding the Homeless: Remedies

The laws in Florida regarding the feeding of the homeless have a direct impact on the programs and services that are designed to provide for this population. Organizations that provide food and housing assistance consistently find themselves in difficult positions, as compliance with local ordinances is not only morally exhausting, but also financially time consuming. Meeting with city officials to discuss what is required of them is a common practice, but given the political nature of this touchy issue, they regularly find themselves disagreeing with what the officials demand, and what they are able to accomplish. When funding is federally or state regulated, it is common that the same officials who are asking for compliance are withholding funds essential to their programs once the organizations refuse to comply with their unreasonable requests.
Compliance is a real issue. Federal and state funding generally requires that nonprofit organizations provide a specific level of support to their clients. Often, this also means that the funds allocated to assist clients with food, clothing, transportation, and other services designed to aid the underprivileged will be diverted to litigation instead of these much needed resources. Nonprofits do not have the same luxury as large corporations, such as Wal-Mart or Publix, to be involved in legal action. Their budgets are already significantly tight, thus they face a true dilemma when city officials offer them a choice—contribute to the private coffers of the owners of the city property for their use, or lose your funding. They must also consider that if they refuse to comply with the requested ‘demands,’ the funds that they desperately need will be cut off, leaving them unable to properly meet all of the needs of their clients.
Obstacle after obstacle presents itself as organizations provide their clients with mandatory services, which are furthered complicated by the limitations imposed on them by ordinance. This is not the first time that they are faced with this. The documented history of segregation against the poor, especially poor African Americans, shows that their circumstances have been disallowed for centuries. However, again like before, the federal government steps in and allocates funds to eradicate the disenfranchisement of this population. Through the McKinney Act, recipients of federal funds are required to provide a certain level of services to the homeless end, and must follow their state guidelines and standards. While the municipal ordinances protect the private property interests of the owners of the land, the federal law is supposed to provide a safety net for the disenfranchised, and that is repeatedly being violated with the abrogation of their right to obtain proper services from nonprofit organizations, thus forcing them to comply with the reasonable demands of the nonprofit. Without smaller organizations, such as these nonprofits, there would be no safety net for the homeless population.

Impact on Homeless Feeding Federally Funded Programs

As with most socio-political issues, the future of such legislation will be dictated by the influence of political, economic , and social progress. Floridians may continue to witness fluctuating legislative initiatives that either hinder or promote the ability of faith-based organizations to contribute their unique services to the homeless community. Continued debate and the public’s reaction to conflicting viewpoints will undoubtedly shape this issue in the years to come. It is likely that Florida will follow the national trend to enforce its Religious Freedom Restoration Act. With a major United States Supreme Court battle on the horizon to tackle the merits of such legislative protections, the state courts in Florida will apply these principles with further scrutiny.